Fla. Supreme Court questions legality of school vouchers

Ruling on nation's first system may sway other states' decisions

TALLAHASSEE -- A majority of the Florida Supreme Court expressed misgivings and skepticism yesterday about whether the nation's first statewide private-school voucher program is legal.

While the seven justices did not say when they would rule, it was clear during the hour-long proceedings that many on the court have constitutional doubts about the voucher program, a centerpiece of the education plan that Governor Jeb Bush ushered into law in 1999.

The Florida battle over whether taxpayer money can be funneled to private and parochial schools is being watched by other states considering voucher programs and may ultimately be decided by the US Supreme Court.

A coalition of groups, including the state's teachers union and civil rights groups, first filed a lawsuit against the program six years ago. A ruling striking down the private-school vouchers could doom other Florida programs, including one offering vouchers to disabled children and a universal prekindergarten program scheduled to start this fall.

The stakes of the case were evident by the nearly 2,000 parents and children who crowded the steps of the Capitol across from where justices were meeting. They were clad in bright red and yellow T-shirts that read ''Warning!" on the front and ''200,000 Futures at Risk" on the back.

The battle inside the court was about whether the opportunity scholarship program violates restrictions on state support for religious institutions and a provision that requires the state to maintain a system of ''free public schools."

The program allows students attending failing schools to go to a private school at taxpayer expense. More than 700 students statewide, most of them either black or Hispanic, receive these type of vouchers.

Both sides entered yesterday's proceedings expecting the debate to center on the church-state clash in the wake of two lower courts having found the opportunity scholarship program had violated a ban on aid to churches and religious institutions that was written into Florida's Constitution in 1885.

More than half of the students receiving opportunity scholarships attend private schools run by churches.

Instead, several justices peppered lawyers for Bush and the state with questions about whether sending public money to private schools went against the mandate that the state have a ''uniform, efficient, safe, secure, and high quality system of free public schools."

''That is the problem here," said Justice Peggy Quince. ''Where does the Legislature, then, get the authority to, in fact, have other forms of education, other than the public education that is provided for in the state constitution?"

Under the current opportunity scholarship program, money is sent directly from school districts to private schools with parents required to sign off on the school receiving the money. The scholarship is equal to the average per-student funding, which was roughly $5,700 this past school year.

''Where I am having difficulty, is that this money is not an additional amount that is being appropriated for education,'' said Justice Charles Wells.

''This is money that is coming dollar for dollar out of the money that would otherwise be for the uniform system of public schools," he said.

Barry Richard, the famed lawyer who represented President Bush during the 2000 recount controversy and is now representing his younger brother, told justices that legislators were free to offer money to private schools provided that they were meeting the requirements for a high quality system of public schools.

That was echoed later by Lieutenant Governor Toni Jennings, who attended the proceedings.

''I think when we provide a spot in every public school for every child we have met the constitutional requirement," she said.